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Cook, Roslyn; McNamara, Joe --- "Bandaid Bail: Current Bail Practices in NSW Come Under Fire" [2006] IndigLawB 10; (2006) 6(17) Indigenous Law Bulletin 6


Bandaid Bail: Current Bail Practices in NSW Come Under Fire

Introduction by Roslyn Cook

Profile by Joe McNamara

Newspapers in western New South Wales (‘NSW’) recently reported an alarming trend in the granting of bail to young Indigenous people accused of an offence.[1] These young people are being granted bail on the condition that they relocate to a regional town, such as Orange. The purpose of these bail orders is presumably to remove them from people who may influence their behaviour; however, the orders are usually made without consultation with the young person or their family, and the courts do not order background checks when bailing young people into the custody of relatives. As a result, young people are moved to a new town (and new school), without their usual networks of family and friends, and often without the provision of appropriate care and support. Indeed, rather than being moved away from temptation, these young people tend to face similar temptations but are now in a situation where their carers are unable to provide adequate supervision.

Left with only two options – remand or relocation – young people are often on their way into a cycle of offending, as they play truant, break bail conditions or commit further offences. Social isolation and rejection are common experiences, and concerns are now being compounded by increasingly vocal and targeted complaints from long-term residents of Orange about criminal and antisocial behaviour.

Suggestions for reform have included a call for background checks before young people are bailed into the care of distant relatives, an increase in funding for community programs and other support services, and more supervision by the police. Local advocates have pointed out that Magistrates should also take a more holistic view of the needs of these young people, taking greater account of issues such as domestic violence, health, drug use, a lack of services and infrastructure in rural areas, and the difficulties all young people are likely to encounter when moving to a new school and living away from home. The needs of the families to whom these young people are released – and their right to privacy – must also be considered.

Unfortunately, that these bail conditions are being imposed at all highlights the dearth of alternatives that are available to magistrates and points to a need for better services in rural areas, and a significant increase in the number of juvenile case workers and programs to address crime.

Profile

Joe McNamara from the Wiradjuri Aboriginal Legal Service in Cowra spoke of his concerns:

What are your concerns about current bail practices in NSW?

Recently I have become aware of an increasing practice of the Children’s Courts in western NSW, mainly Bourke and Walgett, of bailing juvenile accused persons and offenders to cities like Orange and Bathurst.

That is to say that young people, Kooris, are placed under court-imposed bail conditions that take them away from their homes and immediate families pending the outcome of their court matters.

Where do they go? How are they supported?

Most often they live with relatives and the addition of an extra mouth to feed stretches already limited resources.

In my experience disadvantaged Koori people have little success in contact with Centrelink and usually there is no increase in family payment for the extra resident. There are also few resources for school uniforms, books, etc. Some Koori kids as young as 14-years-old are bailed away from their homes and families, and they are typically not attending school. The relatives they come to live with may have little or no authority and therefore no control over their young charges.

What do you see are the main problems in sending young accused or young offenders out of their home town?

A link is often drawn between unsupervised, unoccupied young people and offending, but the real situation is more complex. A lack of adequate nutrition often leads to shoplifting offences whereby young Kooris come under police notice and have extra bail conditions, most often curfews, imposed on them.

Once again the difficulties of having young people living with relatives often leads to breaches of curfew. Children not attending school or reporting to police on bail become outcasts in their adopted location. Issues such as grief over the loss of contact with immediate family are not even considered.

What are the broader issues to be considered?

Poverty and lack of education in remote Aboriginal communities is rife. Courts do not have the answer to the problems associated with this situation. Sending young accused and offenders away from their homes and immediate families exacerbates the problems.

What needs to be done to address these issues and more particularly, this practice?

This is a whole-of-Government issue. Young Aboriginals’ futures are being jeopardised through ill-considered forms of social engineering. Any argument that the type of bail conditions to which I refer is for the protection of the victim is not looking at the issue long-term.

Most young Koori offenders spend relatively short periods in detention and return to their communities. If the situation in towns like Bourke and Walgett is so dire that young Koori children are being banned from their homes, a government inquiry staffed by a variety of experts, criminologists, psychologists, educators, medical experts and lawmakers needs to address the problem and provide solutions.

Roslyn Cook is a law graduate from the University of NSW and a former editor of the Australian Indigenous Law Reporter.

Joe McNamara is a criminal lawyer with the Wiradjuri Aboriginal Legal Service in Cowra, NSW. Having worked largely in private practice previously, with the Wiradjuri Aboriginal Legal Service Joe practices mainly in Orange and Cowra.


[1] ‘Bail Practice Shunts the Problem’, Central Western Daily (Orange), 2 February 2006; David Dixon, ‘Magistrates in NSW’s West Accused of Exporting Crime’, National Indigenous Times (Canberra), 17 February 2006.


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